Val-Com Acquisitions Trust v. EverBank, 4:10-cv-00454

Val-Com Acquisitions Trust and others sue EverBank in federal court for TILA, Regulation Z, RESPA, and related fraud claims, seeking damages and injunctive relief.
Plaintiffs allege EverBank holds the note and deed of trust on property at 228 Memory Drive, Fort Worth, secured by a loan originally from Amerigroup Mortgage Corporation; loan note dated April 9, 2004.
Plaintiffs filed a state-court petition on May 27, 2010; EverBank moves to dismiss for failure to state a claim under Rule 12(b)(6).
TILA claim alleged violations based on disclosures; RESPA and Texas law claims also asserted; action includes misrepresentation theories.
The court analyzes whether claims are time-barred and whether the pleadings state plausible claims against EverBank as holder/assignee.
Court grants EverBank’s motion to dismiss all claims with prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
TILA statute of limitations applies	Plaintiffs argue tolling may render claims timely.	TILA claims are time-barred since consummation was in 2004 and suit filed in 2010.	TILA claims barred; no adequate tolling shown; no plausible TILA claim against EverBank.
RESPA limitations and sufficiency	RESPA claims timely and properly alleged.	Claims are time-barred or insufficiently pled under RESPA and do not specify sections.	RESPA claims dismissed as time-barred or inadequately pled.
Texas 27.01 fraud claim viability	Amerigroup misrepresented facts inducing loan/land transfer.	27.01 applies to land sales, not loan transactions; insufficient pleading of inducement to transfer real estate.	Dismissed; 27.01 does not apply to the loan transaction alleged.
Negligent misrepresentation and declaratory/injunctive relief	EverBank is liable for Amerigroup’s misrepresentations; seeks relief.	No basis to impute Amerigroup’s misrepresentations to EverBank; no ongoing controversy for declaratory/injunctive relief.	Dismissed; no viable negligent misrepresentation claim or ongoing controversy.

Jones v. Alcoa, Inc., 339 F.3d 359 (5th Cir. 2003) (statute of limitations and tolling considerations in Rule 12(b)(6))
In re Smith, 737 F.2d 1549 (11th Cir. 1984) (viability of TILA claims and discovery implications)
Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading)
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (clear articulation of plausibility standard)
Kaiser Aluminum & Chemical Corp. v. Feinbach, 677 F.2d 1050 (5th Cir. 1982) (pleading standards in federal cases)
Guidry v. Bank of LaPlace, 954 F.2d 278 (5th Cir. 1992) (requirements to plead facts, not mere conclusory statements)
Mac v. Moor, 784 F.2d 632 (5th Cir. 1986) (equitable tolling standards)
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333 (5th Cir. 2008) (imputation of misrepresentation liability)
Burleson State Bank v. Plunkett, 27 S.W.3d 605 (Tex. App.—Waco 2000) (Texas 27.01 misrepresentation scope)
HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) (Texas substantive limitations on misrepresentation claims)
Snow v. First American Title Ins. Co., 332 F.3d 356 (5th Cir. 2003) (equitable tolling in RESPA context)